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Wisconsin “Citizens United”

On Friday March 30, 2012, Federal District Judge William M. Conley struck down key provisions of Governor Scott Walker’s marquee legislation, WI Act 10, which stripped public workers across the State of Wisconsin of their right to collectively bargain. Although Judge Conley ruled that the State was within it’s right to deny public workers their bargaining rights, he enjoined the State from prohibiting the collection of dues, requiring yearly re-certifications of unions, and the mandate requiring that a majority of union members participate in elections.

In an interesting twist of fate, Judge Conley cited “Citizens United v. Federal Election Commission” multiple times in his ruling. Citizens United is the controversial Supreme Court ruling that opened the floodgates of Corporate spending in U.S. elections. It also allowed the formation of Super PACs, 501(c)(4) non-profit corporations that can raise unlimited amounts of contributions to run “issue ads”. The ruling struck down provisions in the 2002 Bipartisan Campaign Reform Act, popularly known as the “McCain-Feingold Act.” It specifically referred to prohibitions on “electioneering communications” by corporations, unions and individuals. Perhaps the most contentious aspect of the ruling was the majority’s opinion that corporations must be afforded the same First Amendment Protections as individuals. Key provisions of McCain-Feingold regulating the airing of “issue ads” had previously been struck down in “Federal Election Commission v. Wisconsin Right to Life, Inc.”

Judge Conley wrote:

“…..unions engage — indeed, one of their core functions is to engage — in speech. See Citizens United v. Fed. Election Comm’n. 130 S. Ct. 876, 900 (2010) (“Corporations and other associations, like individuals, contribute to the discussion, debate and the dissemination of information and ideas that the First Amendment seeks to foster.”…….There is no dispute that the plaintiff unions engage in speech……This speech is not limited to the realm of politics, but also constitutes other forms of expressive activity…..

Under Act 10, general employees may still pay voluntary dues and their unions may still engage in speech, including political speech. In that way, Act 10 does not prohibit general employee unions’ or their members’ speech, but it does bar the most efficient method by which these unions collect and their members pay dues. Defendants also concede that general employee unions have lost dues and will continue to lose dues because of this barrier to ease of payment.”

“General Employees” is a category of public workers created by Act 10 to differentiate them from those exempted from the law, specifically most Firefighters and Police Officers. In his ruling, Judge Conley reasons, that the State could have mandated yearly recertification by the “general employee” unions except:

“….the court finds this onerous recertification provision would typically pass the admittedly low bar of rational basis review, but for defendants’ failure to articulate and this court’s inability to posit, how an annual, absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose. Unlike the concern over work stoppages by public safety employees restricted as to their bargaining rights, the requirement for annual proof of support by an absolute majority of union members applies only to general employee unions who are unable to compel any participation of any employee in its union activities, even the payment of a “fair share” fee. The only right granted this union is to bargain collectively on an adjustment in base pay. Even if this Governor and the Legislature had a reasonable concern that this remaining bargaining right might be abused, the concern is not rationally advanced by an unprecedented burden on a voluntary union’s right to continue to exist from year to year. On the contrary, it seems irrational to impose this unique burden on a voluntary union with highly restrictive bargaining rights while maintaining far less burden on public safety unions in which involuntary membership and monetary support continue to be mandated by law.”

The creation of two classes of unions by Act 10 repeatedly runs afoul of the Supreme Courts reasoning in its ruling on “Citizens United v Federal Election Commission”. Specifically, the court expressed concern that “The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.”

Signaling their intent on appealing the ruling, Governor Walker’s spokesman Cullen Werwie said on Friday, “We are confident that the 7th Circuit Court of Appeals will continue to uphold the constitutionality of the law,” It will be interesting to see how the Administration argues against key provisions of the “Citizens United” ruling in their attempt to rehabilitate Act 10. In the meantime, public employee unions in the State of Wisconsin have been given a reprieve from an almost certain demise, and are assured to exercise their political clout in the wake of recall elections set for June 5, when automatic due deductions are reinstated, no later than May 31, 2012.